NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Non-Disclosure and Confidentiality Agreement (“NDA”) is entered into as of this ______ day of _____________________, 20___, (“Effective Date”), by and between _________________________________ and _________________________. Based upon the fact that the parties will be both disclosing and receiving information, the parties are hereafter referred to as “Discloser” when disclosing information and “Recipient” when receiving information. I. Recitals A. Pursuant to the terms and conditions of this NDA, Discloser has agreed to disclose to Recipient, for Recipient to review and evaluate, certain of Discloser’s confidential, proprietary or trade secret information that pertains to Discloser’s operation of a pet care services facility. The information to be disclosed by Discloser is defined below as “Proprietary Information” and is generally described in Addendum A (attached hereto and incorporated herein by this reference) and may be further described through other ongoing communications between the parties. B. Recipient wishes to gain access to Discloser’s confidential, proprietary or trade secret information and materials and agrees to maintain the confidentiality of such information, to use the information only in Recipient’s own business operations, and to not further disseminate such information and materials. II. Agreement In consideration of the mutual promises made herein and in consideration of the representations, warranties and covenants herein contained, the parties agree as follows: 1. Proprietary Information (a) Proprietary Information. Recipient acknowledges that Discloser will provide Recipient with copies of and access to confidential, proprietary or trade secret information and materials of Discloser (or its affiliates, licensors, suppliers, vendors, clients, customers or other third parties to whom Discloser may owe a duty of confidentiality), whether in tangible or intangible form (“Proprietary Information”). (b) Restrictions on Use and Disclosure. Recipient agrees that, during the term of this NDA and thereafter, it shall (i) hold the Proprietary Information in trust and confidence; (ii) use Proprietary Information only for the purposes of improving Recipient’s business operations (iii) not use the Proprietary Information for the benefit of any third party or in any way detrimental to Discloser, (iv) not reproduce such Proprietary Information except to the extent reasonably required in connection with Recipient’s business operations; and (v) not disclose, deliver, lecture upon, publish, provide, disseminate or otherwise make available to any third party, directly or indirectly, any Proprietary Information, in each case without first obtaining Discloser’s express written consent on a case-by-case basis. This restriction on further dissemination includes prohibitions on further dissemination to any other Association member participating in the peer-to-peer program that is or could be a competitor of Discloser, the intent being to ensure that the Proprietary Information is not allowed to be intentionally or unintentionally re-directed from Recipient to a competitor of Discloser in Discloser’s market area. Recipient may disclose Proprietary Information only to Recipient’s employees and agents who have a need to know such Proprietary Information for purposes of Recipient’s business operations, and who are each obligated by a written agreement to comply with confidentiality provisions no less restrictive than those set forth in this NDA. Recipient shall be liable for any breach of this NDA by its employees and agents. Recipient shall protect the confidentiality of and avoid the unauthorized use, disclosure, publication or dissemination of, the Proprietary Information with at least the same degree of care that Recipient uses to protect its own confidential, proprietary or trade secret information and materials of similar nature and importance (but in
no event less than reasonable care). Recipient shall not decompile, disassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law notwithstanding a contractual obligation to the contrary) any Proprietary Information, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in any Proprietary Information. (c) Exclusions. The foregoing obligations in Section 1(b) shall not apply to any Proprietary Information to the extent Recipient can prove such Proprietary Information (i) is or has become generally known or available other than by any act or omission of Recipient; (ii) was rightfully known by Recipient prior to the time of first disclosure to Recipient; (iii) is independently developed by Recipient without the use of Proprietary Information; or (iv) is rightfully obtained without restriction from a third party who has the right to make such disclosure and without breach of any duty of confidentiality to Discloser. (d) Disclosure Required by Governmental Authority. If any court or governmental agency or authority requests or requires Recipient to disclose any of the Proprietary Information, the Recipient shall provide Discloser with prompt notice of such request or requirement. Discloser may, at its expense, either seek appropriate protective relief from all or part of such request or requirement or waive the Recipient’s compliance with the provisions of this NDA with respect to all or part of such request or requirement. At Discloser’s expense, Recipient shall cooperate with Discloser on a commercially reasonable basis in attempting to obtain any such protective relief Discloser chooses to seek. If Discloser does not seek to obtain such relief after a period that is reasonable under the circumstances, then Recipient may disclose that portion of the Proprietary Information which its counsel advises Recipient that Recipient is legally compelled to disclose to such court, agency or authority, or else stand liable for contempt or suffer other significant censure or penalty, at the same time providing Discloser with a copy of the Proprietary Information so disclosed; provided, however, that Recipient shall use those commercially reasonable efforts requested of it by Discloser in attempting to obtain confidential treatment (such as a protective order or similar assurance) for such Proprietary Information as so disclosed. 2. No Warranties; Limitation of Liability. Discloser will have the exclusive authority to decide what Proprietary Information is to be made available to Recipient and neither Discloser nor any of its representatives shall have any obligation to make any particular material available to Recipient or to supplement or update any information previously furnished to Recipient. Recipient agrees that neither Discloser nor its representatives or advisors shall have any liability to Recipient or any of its representatives or advisors resulting from the use of the Proprietary Information or any inaccuracies or errors therein or omissions therefrom. Except as may be otherwise agreed to by both parties in writing, no warranties of any kind, whether express or implied, are given by Discloser with respect to any Proprietary Information or any use thereof, and the Proprietary Information is provided on an “as is” basis. In no event shall Discloser be liable to Recipient for any indirect, special, incidental, punitive or consequential damages of any kind, under any theory of liability, in connection with Recipient’s use of the Proprietary Information in Recipient’s business operations even if Discloser has been advised of the possibility of such damages. 3. Ownership. All Proprietary Information is and shall remain the sole property of Discloser. Recipient does not acquire (by license or otherwise, whether express or implied) any intellectual property rights or other rights under this NDA or any disclosure hereunder, except the limited right to use such Proprietary Information in Recipient’s business operations in accordance with the express provisions of this NDA. All rights relating to the Proprietary Information that are not expressly granted hereunder to Recipient are reserved and retained by Discloser. Recipient receives only a limited use license for the Proprietary Information on such terms as may be agreed upon by the parties. 4. Delivery of Materials. Upon any breach of this NDA or of the Covenant not to Compete Unreasonably also executed by the parties, or at any time upon Discloser’s request, Recipient shall promptly either return to Discloser or destroy, at Discloser’s option, any and all Proprietary Information of Discloser that is then in Recipient’s possession and control and shall certify to Discloser the
destruction of the materials. Thereafter, Recipient shall not be entitled to possess or use any of Discloser’s Proprietary Information. Notwithstanding the return or destruction of all Proprietary Information, Recipient shall continue to be bound by Recipient’s obligations under this NDA, including Recipients’ obligations of confidentiality. 5. Noninterference. Recipient acknowledges that Discloser’s relationships with its employees, agents, suppliers, clients and customers are valuable business assets. Accordingly, Recipient agrees that, during Recipient’s due diligence efforts and for one year thereafter, Recipient shall not (for itself or for any third party) contact any of Discloser’s employees, suppliers, customers, clients, or vendors (without Discloser’s express written authorization) nor divert or attempt to divert from Discloser any business, employee, agent, supplier, client or customer, through solicitation or otherwise. 6. General Provisions (a) Governing Law; Jurisdiction and Venue. If both parties are residents of the same State, this NDA shall be construed in accordance with and governed by the internal laws of that State without giving effect to any choice of law rule that would cause the application to the rights and duties of the parties of the laws of any jurisdiction other than the internal laws of that State. Any dispute regarding this NDA shall be subject to the exclusive jurisdiction of the State courts in and for that State (or, if there is federal jurisdiction, the United States District Court located in that State). If the parties are not residents of the same State, this NDA shall be construed in accordance with and governed by the internal laws of either State after giving effect to any choice of law rule that would determine the applicable State or Federal laws and venue applicable to any dispute between the parties shall be determined in the same manner. (b) Waiver of Jury Trial. The parties hereby expressly waive the right to a trial by jury in any action or proceeding brought by or against either of them relating to this NDA. The parties acknowledge that this NDA involves complex intellectual property matters and that disputes hereunder will be more quickly and economically resolved by an experienced and expert decision maker. Accordingly, the parties agree that any dispute hereunder will be resolved by a judge applying applicable law. (c) Severability. If the application of any provision of this NDA to any particular facts or circumstances is for any reason held to be invalid, illegal or unenforceable by a court, arbitration panel or other tribunal of competent jurisdiction, then (i) the validity, legality and enforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of this NDA, shall not in any way be affected or impaired thereby and (ii) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties. If, moreover, any provision contained in this NDA is for any reason held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with applicable law. (d) Assignment. Recipient shall not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this NDA or any of its rights or obligations under this NDA without the prior written consent of Discloser. Except as provided herein, any purported assignment, transfer or delegation by Recipient shall be null and void. Subject to the foregoing, this NDA shall be binding upon and shall inure to the benefit of the parties and any permitted assigns. (e) Relationship of Parties. This NDA shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties. (f) Notices. All notices to be given to the other party shall be in writing. Notices shall be either personally delivered to the receiving party with a receipt signed by the receiving party or the receiving party’s agent, sent via certified mail, return receipt requested, or sent by same day or overnight courier with a receipt signed by the receiving party or the receiving party’s agent. The addresses for each Party are as set forth in the signature section. Notice shall be deemed given in each case as follows: (i) upon personal delivery or same day courier service to the recipient; (ii) upon the earlier of the date of
receipt shown on the certified mail return or three business days after deposit in the United States Mail if delivery is by certified mail provided that a stamped receipt of deposit is contemporaneously obtained from the United States Postal Service; (iii) on the next business day after deposit with a nationally recognized overnight courier service for delivery as reflected on the delivery service receipt; or, (iv) on the date delivery by the recipient is refused. Either Party may change its address for receiving notice by giving written notice to the other Party according to the procedures noted above. (g) Legal Fees. If any legal or equitable action, including an action for arbitration or injunctive relief, is brought relating to this NDA or the breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a voluntary dismissal by the party instituting the action, shall be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorney fees paid or incurred in good faith. (h) Equitable Relief. Recipient recognizes that the covenants contained in this NDA are reasonable and necessary to protect the legitimate interests of Discloser, that Discloser would not have entered into this NDA in the absence of such covenants, and that Recipient’s breach of such covenants would cause Discloser irreparable harm and significant injury, the amount of which would be extremely difficult to estimate and ascertain, thus, making any remedy at law or in damages inadequate. Therefore, in the event of any violation of this NDA, Recipient agrees that Discloser shall be entitled to the issuance of injunctive relief by any court of competent jurisdiction or arbitrator(s) enjoining any breach of such covenants, for specific performance and for any other relief such court or arbiter deems appropriate. This right shall be in addition to any other remedy available to Discloser at law or in equity. (i) Mutual Indemnity. Each Party agrees to defend, indemnify, and hold the other Party harmless against the following: (i) any and all losses, damages, liabilities, or costs, including attorney’s fees, resulting from any material misrepresentation or material breach of warranty or covenant by the other party under or in connection with this NDA, and, (ii) any and all actions, suits, proceedings, claims, damages, causes of action, penalties, interest, demands, judgments, costs, and expenses (including court costs and attorney’s fees) incurred by a party which are incident to the other party’s material breach of this NDA or of any warranty or covenant herein. (j) Waiver. The waiver by either party of a breach of or a default under any provision of this NDA shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this NDA. No delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder shall operate as a waiver of any right or remedy. (k) Construction. This NDA has been negotiated by the parties and shall be interpreted fairly in accordance with its terms and without any construction in favor of or against either party. (l) Interpretation. The captions and section and paragraph headings used in this NDA are inserted for convenience only and shall not affect the meaning or interpretation of this NDA. Whenever the words “include,” “includes” or “including” are used in this NDA, they shall be deemed, as the context indicates, to be followed by the words “but (is/are) not limited to.” (m) Counterparts. This NDA may be executed (including by facsimile signature) in one or more counterparts, with the same effect as if the parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one agreement. (n) Non-Disparagement. As a material inducement to the parties to enter into this NDA, the parties covenant and agree they will not make or cause to be made, either verbally or in writing, to any person, entity, or authority, whether factually true or not, any disparaging, defamatory, or negative comment, statement, or communication about the other party, their business, employees, owners, shareholders, officers, directors, members, managers, partners, affiliates, parents, subsidiaries, or agents, nor will any party publish or disclose any factually true but private facts about the other party that could cause embarrassment or pubic reproach. (o) Entire Agreement; Amendment. This NDA is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or
contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements, whether written or oral, between the parties relating to the subject matter hereof and all past courses of dealing or industry custom. No modification of or amendment to this NDA shall be effective unless in writing and signed by each of the parties. (p). Survival. All representations, warranties, promises and covenants contained herein to the extent necessary shall survive the breach or termination of this Agreement. IN WITNESS WHEREOF, the parties have caused this NDA to be executed by their duly authorized representatives and as individuals as of the Effective Date. DISCLOSER RECIPIENT _______________________________________ _________________________________________ By: ___________________________ By: __________________________________ Name: _________________________ Name: ___________________________________ Title: ____________________________ Title: ___________________________________ Address: Address: ____________________________ ___________________________________________ _____________________________ ___________________________________________ Phone: _______________________ Phone: _____________________________________ Email : _______________________ Email : _______________________
____________________________________ Individually Name: ______________________________ Address: ____________________________ ______________________________________ Phone: ________________________________ Email: ________________________________ ____________________________________ Individually Name: ______________________________ Address: ____________________________ ______________________________________ Phone: ________________________________ Email: ________________________________ ____________________________________ Individually Name: ______________________________ Address: ____________________________ ______________________________________ Phone: ________________________________ Email: ________________________________
EXHIBIT A All information related to Discloser’s business operations including but not limited to business or marketing plans, trademarks and service marks, drawings, sketches, prints, technology, studies, Discloser’s or Recipient’s analyses of the Proprietary Information, methods of operation, technical or engineering data, reports, processes, performance standards or interpretations, services, products, formulas, samples, environmental and regulatory reports and studies, results of operations, accounting and operating records or forecasts, permits, contracts, assets, equipment leases and obligations to vendors, strategies, forecasts, specifications, know-how, trade secrets, trade practices, memoranda and correspondence, information related to employees, customers, vendors, or suppliers, any reproductions or copies of the same, and other information in written, oral, magnetic, photographic, optical or other form, format or medium, related to Discloser, whether now existing or developed or created during the term of this NDA. The parties also stipulate that all analyses, studies, or compilations of the Proprietary Information prepared by the Recipient which contains or is based upon any of the Proprietary Information shall also constitute a part of the Proprietary Information. Due to the confidential nature of the Proprietary Information and its creation by Discloser, the parties stipulate that the non-public Proprietary Information, whether in electronic or written form, and any verbal explanations thereof, constitutes trade secrets which are Discloser’s valuable and protectable property.